Rose v. Figgie Intern., Inc.

• Decision Date: 05 December 1997
• Docket Number: A97A1496,Nos. A97A1495,s. A97A1495
• Citation: 495 S.E.2d 77,229 Ga.App. 848
• Parties: , Prod.Liab.Rep. (CCH) P 15,147, 97 FCDR 4478 ROSE v. FIGGIE INTERNATIONAL, INC. FIGGIE INTERNATIONAL, INC. v. ROSE.
• Court: Georgia Court of Appeals

Page 77

495 S.E.2d 77

229 Ga.App. 848, Prod.Liab.Rep. (CCH) P 15,147,

97 FCDR 4478

ROSE v. FIGGIE INTERNATIONAL, INC.

FIGGIE INTERNATIONAL, INC. v. ROSE.

Nos. A97A1495, A97A1496.

Court of Appeals of Georgia.

Dec. 5, 1997.

Reconsideration Denied Dec. 16, 1997.

Certiorari Denied March 6, 1998.

Calabro & Jennette, Michael M. Calabro, Larry, Jennette, Jr., Atlanta, for appellant.

Smith, Howard & Ajax, Frederick W. Ajax, Jr., Michael D. St. Amand, James T. Brieske, Atlanta, for appellee.

Dawson & Huddleston, Patrick A. Dawson, Marietta, amicus curiae.

BEASLEY, Judge.

This is a product liability action arising from an incident in which a nozzle assembly of a fire extinguisher spontaneously exploded and separated from the canister. It caused a cloud of chemicals to disperse in Margaret Rose's apartment, allegedly harming Rose. She sued the manufacturer of the fire extinguisher, Figgie International, Inc., whose motion in limine was granted so as to exclude evidence of similar spontaneous explosions of the same model extinguisher and to exclude evidence of Figgie's subsequent recall of the extinguisher for a manufacturing defect that caused spontaneous explosions. At Rose's request, the court also excluded evidence of psychiatric and psychological evaluations of Rose, which diagnosed Rose as suffering from psychiatric disorders that caused her to create or exaggerate her physical symptoms. In this interlocutory appeal we hold that the trial court erred in granting both motions in limine.

Case No. A97A1495

Since 1980, Figgie has designed, manufactured, marketed, and sold a fire extinguisher known as the American LaFrance Model P-250MA. Figgie admits that in some of the fire extinguishers it manufactured between August and October 1985, the threads on the collar or spud of the extinguishers were slightly out of tolerance, meaning the diameter of the hole into which the valve was screwed was larger than it should have been. This manufacturing defect would sometimes result in the nozzle assembly spontaneously exploding and separating from the canister, the contents of which were under 190 psi of pressure. Figgie's representative testified that unless an extinguisher was improperly cross-threaded when being recharged, or had been struck sideways with sufficient force to damage the valve, the defective threading was the only reasonable explanation for a spontaneous explosion and valve separation.

Figgie's records show that by May 1990 it had received notice of over 50 incidents of spontaneous valve separation explosions involving this model. Later that month Captain Irvine of the DeKalb County Fire Department notified Figgie that four extinguishers of this model had recently exploded in DeKalb County. Figgie made no public announcements or warnings at that time.

During the night of September 4, 1990, as Rose and her children slept in their DeKalb County apartment, the nozzle assembly on their Figgie fire extinguisher model P-250MA spontaneously exploded and separated from the canister. Rose inhaled the chemicals released by the explosion while she evacuated her children from the apartment and made phone calls to get help. She alleges she suffered permanent lung damage as a result. The day following the incident, a maintenance employee of the apartment complex disposed of the exploded extinguisher without the knowledge or consent of Rose or Figgie. ¹

In May 1991, Figgie issued a notice recalling its model P-250MA extinguishers manufactured during the August through October 1985 time period and specified the serial numbers, including the serial number of Rose's extinguisher. The basis for the recall, which references Rose's and the four other explosions in DeKalb County, was the valve threading defect.

Rose sued Figgie, asserting strict liability, negligent manufacture, breach of warranty, and failure to warn. She also sought punitive damages. Figgie moved to exclude evidence of the 50 other incidents of spontaneous explosions and of the recall notice. Ruling to exclude other-incident evidence, the court explained orally that without the extinguisher Rose could not establish that the other extinguishers were substantially similar, for she could not prove that hers had the same manufacturing defect as the others which exploded. At the hearing on the motion to reconsider the ruling, the court reiterated that "without the instrumentality, I don't see how you can bring any substantially similar or any other incident in. There is nothing to compare it to.... You don't have the instrumentality to compare to any other incident." Accordingly, the court also excluded evidence regarding the recall notice. Rose appeals from these two rulings.

1. Decisions to exclude evidence of similar incidents are "reviewed for abuse of the trial court's discretion. [Cits.]" Whitley v. Gwinnett County, 221 Ga.App. 18, 20(3), 470 S.E.2d 724 (1996). But where the record indicates that the court based its decision on a misapprehension of the law, reversal is appropriate. Phillips v. Drake, 215 Ga.App. 210, 211(1), 449 S.E.2d 879 (1994). See Flagg v. State, 187 Ga.App. 297, 299(2), 370 S.E.2d 46 (1988) (sentencing reversed where court misapprehended the law). This is also true where the court misapprehends the facts. Ga. Building Svcs. v. Perry, 193 Ga.App. 288, 290(1)(a), 387 S.E.2d 898 (1989) (exclusion of evidence reversed). We find the trial court based its decision on a misapprehension that the law requires the availability of the instrumentality in question to establish it had the same manufacturing defect.

(a) The court correctly held Rose must first establish that her extinguisher had the manufacturing defect at issue. Without that fact, it would be unnecessary to decide whether the 50 incidents involving other extinguishers with the defect were substantially similar. "In product liability actions, evidence of other incidents involving the product is admissible, and relevant to the issues of notice of a defect and punitive damages, provided there is a showing of substantial similarity. Without a showing of substantial similarity, the evidence is irrelevant as a matter of law." (Citations and punctuation omitted.) General Motors Corp. v. Moseley, 213 Ga.App. 875, 877(1), 447 S.E.2d 302 (1994), See Mack Trucks v. Conkle, 263 Ga. 539, 544(3), 436 S.E.2d 635 (1993); Skil Corp. v. Lugsdin, 168 Ga.App. 754, 755(1), 309 S.E.2d 921 (1983). Regarding punitive damages, "evidence that appellant knew from complaints of similar incidents that the probable consequence of a certain defect would be to inflict injury was relevant to the question of malice or wanton misconduct. [Cits.]" Skil Corp., supra, 168 Ga.App. at 755, 309 S.E.2d 921. Also, "the manufacturer's knowledge of dangerous propensities is relevant to its duty to adequately warn of same. [Cits.]" Id.

The court found the absence of Rose's extinguisher precluded a showing that it had the same manufacturing defect as the other extinguishers. But "[i]t has often been held that the existence of a manufacturing defect in a products liability case may be inferred from circumstantial evidence." Firestone Tire, etc., Co. v. King, 145 Ga.App. 840, 842(1), 244 S.E.2d 905 (1978). See Folsom v. Sears, Roebuck & Co., 174 Ga.App. 46, 47, 329 S.E.2d 217 (1985). Because a product may be destroyed as a result of an incident, circumstantial evidence is particularly appropriate in product liability cases to show the manufacturing defect. For example, in King the tire blowout had destroyed the area containing the allegedly defective material so it could not be observed physically. The court reasoned that "[t]o rule that this prevented [King] from establishing a prima facie case would be to insulate manufacturers from liability for defective products in any case where the defect causes its own destruction. Such a result would be totally untenable." Id.

Similarly, in Skil Corp., a saw's blade guard did not close, injuring the plaintiff Lugsdin. Through no fault of either litigant, the saw became unavailable for inspection. Citing the evidence that the saw was new and had not been tampered with or altered, and the expert testimony that there was no other reasonable explanation for failure of the blade guard other than a defect in the saw's spring mechanism, we concluded that "[c]ircumstantial evidence may be used to establish the existence of a manufacturing defect at the time the product left the manufacturer, even where the product is consumed or destroyed in the use that resulted in the plaintiff's injury. Based upon the evidence recited above ..., there was sufficient evidence from which the jury could infer that the saw was defective when sold by the appellant-manufacturer." (Citations omitted.) 168 Ga.App. at 756-757, 309 S.E.2d 921

Thus, even without the extinguisher, Rose could use circumstantial evidence to prove it had the same threading defect as the extinguishers in the other incidents. See Central of Ga. R. Co. v. Butts, 211 Ga.App. 619, 620(1), 440 S.E.2d 218 (1993) (train car with allegedly defective window had been sold for scrap; circumstantial evidence admitted to show defect); Firestone Tire, etc., Co. v. Hall, 152 Ga.App. 560, 562-563(1), 263 S.E.2d 449 (1979) (absent the allegedly defective tire, the jury could infer from circumstantial evidence that "there was no other reasonable explanation for the blowout other than a defect in the tire"); Glynn Plymouth v. Davis, 120 Ga.App. 475, 481(1), 170 S.E.2d 848 (1969) (though car unavailable, "wholly circumstantial" evidence admissible to show defective brake drums), aff'd. 226 Ga. 221, 173 S.E.2d 691 (1970); Central of Ga. R. Co. v. Keating, 45 Ga.App. 811, 814(3), 165 S.E. 873 (1932) (bridge portion destroyed in accident; other portions of bridge admissible to show wood was in rotten condition), rev'd on other grounds, 177 Ga. 345, 170 S.E. 493 (1933).

(b) Circumstantial evidence relevant to prove a manufacturing defect may...